Balwaine v Namusisi (Miscellaneous Application 933 of 2022) [2023] UGHCFD 141 (21 July 2023)

### **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT KAMPALA (FAMILY DIVISION)**

**MISCELLANEOUS APPLICATION NO. 933 OF 2022**

# **(ARISING FROM EMA NO. 27 OF 2022)**

**(ARISING FROM CIVIL SUIT NO. 006 OF 2022 (OS))**

**BALWAINE DAVID ::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

# **ALLEN ASINGA NAMUSISI :::::::::::::::::::::::::::::: RESPONDENT**

### **BEFORE: HON. LADY JUSTICE CELIA NAGAWA**

#### **RULING**

# **1.0 Introduction**

- 1.1 The Applicant filed this Application by Notice of Motion under **Section 98 of the Civil Procedure Act, Cap. 71 and Order 43 of the Civil Procedure Rules SI 71-1 (CPR),** for stay of execution of the judgment delivered in Originating Summons No. 006 of 2022 (Allen Asinga Namusisi Versus Balwaine David) and costs to be provided for. - 1.2 The Respondent, Allen Asinga Namusisi opposed the application through her affidavit in reply sworn on 7th November, 2022. - 1.3 The application is premised on the grounds that the Applicant being aggrieved with the judgement delivered by the trial court on


20th May, 2022 has filed an appeal. It is the Applicant's position that he filed an Appeal before the Court of Appeal Vide Civil Appeal No. 047 of 2022 and the same is still pending. The said appeal has higher chances/likelihood of success and is not frivolous. The appeal, if successful, will be rendered nugatory if the execution is not stayed pending the appeal. The Applicant avers that it is in the interest of justice that the application be allowed.

- 1.4 The application is supported by the affidavit of Balwaine David the Applicant averring that the Respondent filed the Originating Summons against him, to wit his lawyers filed a Preliminary Objection and the same was fixed for ruling on the Preliminary Objection by the judge. Unfortunately, on the day of the Ruling, the judge instead gave a judgment against the Applicant thus filing Civil Appeal No. 47 of 2022 in the Court of Appeal challenging the judgment. Then, on 5th October, 2022 the applicant received a phone call from the Local Council Chairman Kiranga Village, Namubiru Parish Nama Sub County, Mukono District informing him that he had received a Judgement of Court and Notice of Eviction stipulating that he was going to be evicted by the Respondent on Monday 10th October, 2022. - 1.5 As a result of the threat of execution of orders in the Originating Summons/Civil Suit No. 006 of 2022 he filed an application for stay of execution. The affidavit also reiterates the grounds on the face of the application. - 1.6 The Respondent in opposition to the application, averred that there is no Civil Appeal No. 047 of 2022 in the Court system. There is no


Memorandum of Appeal. The Appeal arose as a result of a judgement that was delivered on 20th May, 2022 wherein the applicant had raised a Preliminary Objection which was disposed of and the suit was determined. The Respondent further averred that she will be gravely prejudiced, deprived of her proprietary rights among others if the application is granted at the time when she does not have money to build another house for herself.

- 1.7 At the hearing of this application, the applicant was represented by Mr. Denis Mwina from Mwina, Wanada & Co. Advocates and the Respondent was represented by Ms. Immaculate Nshekanabo from Ddamulira & Muguluma Edward Advocates. The advocates for the parties agreed to dispose of the application through written submissions. Their respective written submissions have been considered in determination of this suit. - 1.8 The applicant raised two issues; - 1. **Whether the Applicant is entitled to the reliefs sought?** - 2. **Who bears the costs of this application?** - 2.0 **The Law** - 2.1 This is an application that invokes the discretionary powers of the court. Of course discretionary powers must be exercised judiciously. This application is brought under **Order 43 Rule 4(1) & (2) of the Civil Procedure Rules, SI 71-1** which empowers this court to stay execution, either of its judgement or that of a court whose decision is being appealed from,


pending appeal. The conditions to be met before the stay is granted are provided by the Rule 3.

- 2.2 Order 43 Rule 4(1) of the CPR provides thus; - (i) "An appeal to the High Court shall not operate as a stay of proceeding under a decree or order appealed from except so far as the High Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree, but the High Court may for sufficient reason order stay of execution of the decree. - (ii) Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing from the decree, the court which passed the decree may on sufficient cause being shown order the execution to be stayed. - 2.3 The Applicant urged the court to exercise its discretion in his favour. The Applicant submitted that the purpose of stay of execution pending appeal is to preserve the subject matter so that the right of appeal can be exercised without prejudicing the applicant as the appeal would be rendered nugatory if there is no stay. According to the Applicant, he has been staying on the suit property for the last (4) years with his family and he will suffer an irreparable injury and or damage since there is an eminent threat of execution as a notice of eviction was issued and had been concealed from him intended to evict him and


demolish his house if the execution decree is not stayed until Civil Appeal No. 047 of 2022 is heard and disposed of.

# **2.4 Determination of Issues**

# **Issue No. 1: Whether the Applicant is entitled to the reliefs sought?**

- 2.5 According to Counsel for the Applicant while arguing the grounds for stay by the High Court he cited the Constitutional Court decision in **Hon. Theodore Ssekikubo & Others Vs. The Attorney General and Another, Constitutional Application N0. 06 of 2013,** to include; - i. The applicant must show that he lodged a notice of appeal. - ii. That substantial loss may result to the applicant unless the stay of execution is granted. - iii. The application has been made without unreasonable delay. - iv. The applicant has given security for due performance of the decree or order as may ultimately be binding upon him. - 2.6 Counsel for the applicant further submitted and relied on the case of **Tropical Commodities Suppliers Ltd and Ors Vs International Credit Bank Ltd (In Liquidation) (2004)2 EA 331 wherein** Justice Ogola *J (as he then was) opined that substantial loss does not represent any particular amount or size for it cannot be quantified by any particular mathematical formulae. It refers to any loss, great or small that is of real worth*


*or value as distinguished from loss without a value or that which is merely nominal.* My understanding is that, the Court ought to consider substantial loss claimed by an applicant in light of the particular facts as raised on case by case basis.

- 2.7 The applicant deponed under paragraph 12 of his affidavit in support, that he has been staying on the suit property together with his family for the last 4 years and unless the execution of the decree in originating summons /civil suit No. 006 of 2022 is stayed, automatically an eviction and demolition will cause irreparable loss to him. - 2.8 Counsel further submitted that the application is being made without delay and averred under paragraph 4 and 6 of the affidavit in support that the judgement was delivered on 20th May, 2022 and a notice of appeal was filed on 25th May, 2022 together with a letter requesting for the record. He deponed under paragraph 7, 8 and 9 that he was not served with court documents pertaining the EMA, Notice to show cause why execution should not issue and notice of eviction by the respondent and yet his address was well known. The applicant he has since served the Respondent with the Notice of Appeal and letter requesting for the record. Following that the applicant filed an application on 6th October, 2022 having learnt of eviction that was planned for 10th October, 2022 hence no delay was occasioned.


- 3.8 Lastly counsel submitted that the applicant should be pardoned from furnishing court security for costs for the due performance since the appeal has higher chances of succeeding and he has a fixed place of abode on the suit land. - 3.9 On the other hand, while opposing the Application Counsel for the Respondent submitted that the application is frivolous and vexatious and amounts to an abuse of court process. That once court dismisses the application, the applicant shall not suffer any substantial loss. The applicant is not the owner of the suit property. The property belongs to the Respondent and he will have other alternatives to go and rent a house within the neighborhood and still prosecute his appeal which has no likelihood of success. - 3.10 Counsel for the Respondent relied on the case of **Anandi Prashad Vs Govinda Bapu AIR 1934 Nag 160 (D)** where it was observed by the Learned Judge Vivian Bose A. JC that:

"it *is not enough merely to repeat the words that substantial loss will result, the kind of loss must be specified, details must be given, and the conscience of the Court must be satisfied that such loss will really ensue"…. In order to get the substantial loss…, it should be a loss more than what should ordinarily result from the execution of the decree in normal circumstances".*

*3.11* Counsel submitted that the applicant did not demonstrate the substantial loss he is likely to face but generalized the assertion of substantial loss if the eviction order is enforced. He did not

 demonstrate what substantial loss would be occasioned to him if the decree holder continued to enjoy the fruits of the judgment rather than stating that he would be sent away from the house, which the execution is designed to do. Counsel further cited and based her argument on the case of **Nganga Versus Kimani [1969] EA** where the court held that; "*in applications for stay of execution, court should consider whether substantial loss would arise from not granting the same and whether the dictates of justice demands so".*

- *3.12* She further referred to paragraph 6 (g) were the Respondent attached the applicant's affidavit in reply marked "C" where in paragraph 13 he admitted that the suit house was not bought by himself and he failed to prove that he contributed to the construction of the house, instead the affidavits of Mukasa Sserumpanise Charles attached to the Respondent's affidavit proved that the suit house was built by the Respondent and her mother and the same was never denied by the applicant. - *3.13* Counsel for the Respondent submitted on the requirement to provide security for due performance of the decree that there is no need for the applicant to provide security for due performance of the decree because once his appeal is dismissed the respondent will get his property. Counsel stated that since the applicant did not plead any relief regarding security for due performance, she prayed that this application fails on this ground, and if court is inclined to grant the stay then a


reasonable security of UGX. 20,000,000/= is set as required of the applicant or else execution ensues.

*3.14* It is also settled law that there is no automatic stay of execution to be granted merely by virtue of an appeal being filed in an appellate Court. The party appealing the decree of this Court must show sufficient cause if he or she is to be granted a stay.

## **4.0 Decision of Court**

**4.1** An application for stay of execution is determined by the principles set out in the case of *Lawrence Musiitwa Kyazze Versus Eunice Busingye SCCA No. 18 of 1990* cited by both counsel which was relied upon by Court of Appeal in the case of *Kyambogo University*

*Vs Prof Isaiah Omoro Ndiege Civil Application No. 341 of 2013* which stated the conditions the applicant must satisfy for grant of an order of stay of execution as follows;

- 1. The applicant must show he has lodged an appeal which is pending hearing. - 2. The said pending appeal is not frivolous and it has a likelihood of success. - 3. There is eminent threat of execution of the decree and if not stayed the appeal will be rendered nugatory. - 4. That the application was made without unreasonable delay. - 5. That the applicant is prepared to give security for due performance of the decree and


- 6. That refusal to stay would inflict greater hardship that it would avoid. - 7. The power to grant or refuse a stay is discretionary. - 4.2 The conditions that the Court should consider before allowing an application to stay execution are provided for in **Order 43 Rule 4(3)** of the Civil Procedure Rules SI 71-1. - (i) That substantial loss may result to the applicant unless the order is made (ii) That the application has been made without unreasonable delay and, (iii) That security has been given by the applicant for due performance of the decree or order as may ultimately be binding upon him or her. - 4.3 The Constitutional Court in the decision in **Hon. Theodore Ssekikubo & Others Vs. The Attorney General and Another, Constitutional Application No. 06 of 2013,** added another principle that the applicant must establish that their appeal has a likelihood of success. The above provisions are mandatory and not merely directory and this is grounded on the principle that the successful party should not without good reason be deprived of the fruits of a judgment in their favour. - 4.4 An order for Stay of Execution will only be granted in accordance with Order 43 Rule 4(3). The main ground advanced by the applicant appears to be that Respondent intends to execute the decree on appeal by obtaining eviction orders against him which will render his intended appeal nugatory, and cause him


substantial loss. Substantial loss was discussed in **James Wangalwa & Another Versus Agnes Naliaka Cheseto [2012] eKLR,** where court stated that:

*"*No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, does not in itself amount to substantial loss …. This is so because execution is a lawful process*. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal"*

4.5 The applicant only argued that he would suffer an irreparable financial loss if he is evicted and the house is demolished. This is well within the rights of the successful decree holder. A successful decree holder should not be prevented from enjoying the fruits of the judgement unless proof of substantial loss is furnished before this court. This is the very duty of this court. To adjudicate on matters between parties, after which a successful applicant enjoys the fruits of the judgement and the fruits of the work of this court. The Respondent presented evidence to show that the applicant is not the owner of the said suit property. It was her contention that the house was built by her and her late mother. If there was loss to be occasioned, it would be to the party that adduced some evidence


as to ownership or contribution to construction which the applicant did not. There should be sufficient cause to warrant a stay of execution, which the applicant did not provide. I have considered the submission and authorities cited by both counsel, and this court is not satisfied that the applicant has demonstrated that the loss if any will result if the application is not granted which is incapable of being atoned by the respondent in monetary terms.

- 4.6 It is known that where a suit is not decided in a party's favour, he or she will suffer loss. However, not every party that is disgruntled by the outcome of the suit shall have the recourse of Stay of Execution upon appeal. The party must ably present sufficient cause to this court in order to obtain an order for stay of execution. - 4.7 A Key Requirement of Order 43 rule 4(3) is that security has been given by the applicant for due performance of the decree or order as may ultimately be binding upon him or her. His counsel argued that not in all cases is the applicant expected to furnish security for costs. He argued relying on **Amunaum Sam V Opolot David MA No. 3 of 2014,** that this requirement is not mandatory but rather at the discretion of court. - 4.8 The applicant has the onus to prove to satisfaction of court that he has met the conditions provided for under Order 43 Rule 4 sub rule 3 to secure an order of stay of execution. It is a mandatory requirement under Order 43 Rule 4 (3) CPR that execution is stayed only on condition that the applicant has before or at the filing of the substantive application for stay, furnished due performance of the decree. Some Courts have taken the liberal view that such


security should be determined by the Court, and for all intent and purpose, should be furnishing security for costs only. See for example: **Kampala Bottlers Ltd Vs Uganda Bottlers SCCA No. 25/1995.**

- 4.9 There is no commitment by the applicant in his application or supporting affidavit to furnish security for due performance or costs. The court cannot assume that he intended to commit himself to that extent, and thereby the court cannot determine a fair amount for him to defray. The law on this is clear and mandatory and not merely meant to guide or suggest. - 4.10 A grant of a Stay of Execution has the effect of making the respondent wait until the conclusion of the appeal to repossess her property or realize the fruits of the decree. For this court to make that order, the risk of substantial loss to the applicant must be shown clearly. The loss must be such that it cannot be compensated by the Respondent upon a Successful appeal. This court has weighed the need to have a successful party enjoy the fruits of her victory against the unsuccessful party's danger of substantial loss to be caused by execution. - 4.11 Litigants should know that as long as the decree sought to be executed is not set aside by a competent court, it stands valid and the decree holder/judgment creditor should not be denied it's fruits where the applicant/judgment debtor fails to satisfy the conditions to the satisfaction of court to warrant stay of execution otherwise this will encourage judgment debtors to file appeals and


applications for stay of execution thinking that the grant of an order of stay of execution is an automatic one to stop the successful party/judgment creditor from enjoying the fruits of litigation.

- 4.12 Having analyzed the evidence adduced by both parties and submissions by both counsel, the applicant failed to discharge his onus of proving substantial loss that may be occasioned by the refusal to grant the order of stay of execution and that the appeal will be rendered nugatory. - 4.13 This court accordingly declines the application for stay of execution with costs to the Respondent, Allen Asinga Namusisi. The interim order that was granted on 7th October, 2022 automatically lapses.

## **5.0 Conclusion.**

- 5.1 In the final result, the court decides as follows. - 1. The application for stay of execution of the judgment delivered in Originating Summons No. 006 of 2022 is hereby dismissed. - 2. Costs for this application are awarded to the Respondent.

I so Order.

## *Dated, signed and delivered by email this 21st day of July, 2023.*


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